case no. 2011-0314 in the supreme court of ohio in the supreme court of ohio cheryl d. waiters...
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IN THE SUPREME COURT OF OHIO
CHERYL D. WAITERS
Appellant
V.
GREGORY J. LAVIELLE, et al.
Appellee
Case No. 2011-0314
On Appeal from theCuyahoga County Court of Appeals,Eighth Appellate District
Court of AppealsCase No. 95270
APPELLEE, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,LOCAL 38'S MEMORANDUM IN RESPONSE TO APPELLANT'S MEMORANDUM
IN SUPPORT OF JURISDICTION
S. DAVID WORHATCH (0031174)Law Offices of S. David Worhatch4920 Darrow RoadStow, Ohio 44224(330) 650-6000(330) 656-2300Fax: (330) 650-2390sdworhatch(a,nls.net
GOLDSTEIN GRAGEL, LLCBy: Joyce Goldstein (0029467)
Shelley M. Fleming (0081212)1040 The Leader Building526 Superior Avenue E.Cleveland, Ohio 44114(216) 771-6633Fax: (216) 771-7559igoldstein(&ggcounsel.comsflemin¢(a)sgcounsel.com
Counsel for Appellant, Cheryl Waiters Counsel for Appellee, IBEW, Local 38
^U L6
MAR Z8 2011
CLERK OF COURTSUPREME CCIURT OF OHIO
F
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h1AR 2 U 2011
CLERK OF COURTSUPREME COURT OF OHIO
TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................:..............:.............:........::..................3
EXPLANATION OF WHY THIS CASE IS NOT A CASE OF GREAT PUBLICOR GENERAL INTEREST AND DOES NOT INVOLVE A SUBSTANTIALCONSTITUTIONAL QUESTION ......................................................................4
COUNTERSTATEMENT OF THE FACTS AND CASE .......................................... 5
RESPONSE TO PROPOSITIONS OF LAW ......................................................... 7
Proposition of Law No. 1: "Where the object of a civil action brought by a member of acollective bargaining unit is to seek equitable or declaratory relief in aid of his or herexercise of a right guaranteed by law, a common pleas court has jurisdiction over such aclaim even if part of the claim also might constitute an "unfair labor practice" within themeaning of Chapter 4117 of the Revised Code..................................... .:............7
Proposition of Law No. 2: "At any time before a final, appealable decision is renderedthat adjusts all issues presented by a grievance filed by or for a member of a collectivebargaining unit, such member may elect under Section 4117.03 (A)(5) of the RevisedCode to proceed to adjust such grievance without the intervention of the collectivebargaining representative." . : . . . . .. . .. . . . . .. . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . 9
CONCLUSION ...........................................................................................12
CERTIFICATE OF SERVICE ........................................................................... 13
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TABLE OF AUTHORITIES
Cases
Alexander v. Gardner-Denver Co., 415 U.S.36, 58 (1974) .......................................... 5, 11
City of Cleveland v. IBEW, Local 38, Cuyahoga App. No. 92982, 2009-Ohio-6223 .............5, 6
City of East Cleveland v. East Cleveland Firefighters Local 500, 70 Ohio St.3d 125,637 N.E. 2d 878 . ... ...... ..... .........:............ ...... ..................... ........... ....... .. ....... ... 8
Coleman v. Cleveland School District, 142 Ohio App. 3d 690, 693, 756 N.E.2d 690 (2001).....10
District 11, The Health Care & Social Services Union v. SERB, 2002 SERB 4-10 .....:............:.8
District 1199 v. SERB, Franklin App. No. 02AP-391, 2003-Ohio-3436 ................................8
Franklin County Law Enforcement Association v. Fraternal Order of Police (1991),59 Ohio St. 3d 167, 572 N.E. 2d 87 ......................................................................4, 7
Johnson v. Metrohealth Medical Center, Cuyahoga App. No. 79403, 2001-Ohio-4259........5, 10
Johnson v. Metrohealth Medical Center, 95 Ohio St.3d 1465, 2002-Ohio-2354,768 N.E.2d 657 ........ ......................... ... ...... ...... ............... ............... .. .... ...... .......5
State of Ohio, ex rel Waiters v. Szabo, Cuyahoga App. No. 94599, 2010-Ohio-5249 ................5
Stratford v. Greater Cleveland Regional Transit Authority (Dec. 23, 1993),Cuyahoga App. Nos. 63663. 65530 ... ........... ....... ... ...... ... ......... ... ...... ...... ..... ..........10
Waiters v. Lavelle, Cuyahoga App. No. 95270, 201 1-Ohio-1 16 ........................................5
Whitlowv. Ingram (November 7, 1994), Mahoning App. No. 93CA74 ...............................9
Statutes
Ohio Revised Code Chapter 4117 ......................................................................7, 8, 9
Ohio Revised Code Section 4117.03 ...................................................................4, 10
Ohio Revised Code Section 4117.03(A)(5) .........................................................4, 9, 10
Ohio Revised Code Section 4117.11(B)(6) .................................................................8
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EXPLANATION OF WHY THIS CASE IS NOT A CASE OF GREAT PUBLIC ORGENERAL INTEREST AND DOES NOT INVOLVE A SUBSTANTIAL
CONSTITUTIONAL OUESTION
This appeal originates from a decision by the Eighth District Court of Appeals which
affirmed the trial court's decision dismissing Waiters' complaint against International
Brotherhood of Electrical Workers, Local 38 ("Union"), Gregory Lavelle ("Lavelle") (the
arbitrator presiding over the underlying grievance), and the City of Cleveland ("City"). Waiters
sought injunctive relief to stay the nearly completed arbitration process. Waiters also sought a
declaratory judgment to direct that, under R.C. 4117.03, she had the right to terminate the
Union's involvement in her grievance and to separately complete the arbitration process with her
own counsel.
This case does not merit this Court's review. This case neither involves any substantial
constitutional issue, nor is of public or great general interest. Waiters' first proposition of law
addresses SERB's exclusive jurisdiction over cases in which at least part of the action constitutes
an unfair labor practice. This Court has already addressed this exact issue in Franklin County
Law EnforcementAssociation v. Fraternal Order ofPolice (1991), 59 Ohio St. 3d 167, 572 N.E.
2d 87, where the Court concluded that SERB had exclusive jurisdiction under similar facts.
Waiters' second proposition of law asks this Court to hold that a public employee may
elect to terminate her union representation and individually pursue the grievance on her own at
any time during the arbitration process. Pursuant to R.C. 4117.03(A)(5) public employees may
elect to pursue their grievance using either Union representation or representation of their own
choice. However, the statute does not provide that an employee may change her election at any
time. In this case, the Union represented Waiters for several years before she made any attempt
to proceed independently pursuant to R.C. 4117.03(A)(5).
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As explained below, Waiters' second proposition of law has been squarely rejected in
Ohio in conformity with the standards approved by the United States Supreme Court. In
Johnson v. MetroHealth Medical Center, Cuyahoga App. No. 79403, 2001-Ohio-4259, the
Eighth District Court of Appeals held that once a public employee elects union representation
they no longer have rights to the claim. This Court denied review of the Eighth District's
decision in Johnson. See Johnson v. Metrohealth Medical Center, 95 Ohio St.3d 1465, 2002-
Ohio-2354, 768 N.E.2d 657. The holding in Johnson is consistent with the United States
Supreme Court decision in Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) where the
Court confirmed that the rights of individuals may be subordinate to the rights of the union
during collectively bargained arbitration proceedings. Accordingly, once Waiters elected and
utilized Union representation, she waived any rights to elect to pursue the claim independently.
Consequently, neither of Waiters' propositions of law warrant review by this Court.
COUNTERSTATEMENT OF THE FACTS AND CASE
This matter has an extensive procedural history consisting of three arbitration phases and
three appellate decisions, all stemming from Waiters' termination. See State of Ohio, ex rel
Waiters v. Szabo, Cuyahoga App. No. 94599, 2010-Ohio-5249; City of Cleveland v. IBEW Local
38, Cuyahoga App. No. 92982, 2009-Ohio-6223; Waiters v. Lavelle, Cuyahoga App. No. 95270,
2011-Ohio-116.
In June 2008, Waiters, a bargaining unit employee for the City of Cleveland, was fired
for allegedly threatening her coworkers. The Union filed a grievance on Waiters' behalf seeking
Waiters' reinstatement and back pay. The City denied the grievance and the matter proceeded to
arbitration as negotiated by the collective bargaining agreement.
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The Union represented Waiters throughout the arbitration proceedings. On March 8,
2008, the arbitrator issued a decision upholding Waiters' grievance and ordering that she be
reinstated to her position with the City. On May 12, 2008, the City filed an action in the
Cuyahoga County Court of Common Pleas to vacate the arbitration reward. The Union
responded with an application to confirni the award.
On June 5, 2008, the arbitration process resumed to determine if Waiters was entitled to
back pay from June of 2008 when she was terminated, to June 5, 2008, when the hearing was
held. On July 28, 2008, the arbitrator issued his decision and concluded that Waiters failed to
mitigate her damages; therefore, she was not entitled to an award of back pay. The Union then
included this subsequent award in support of its application to confirm the arbitration award
which was still pending with the trial court.
On February 11, 2009, the trial court denied the City's application to vacate the
arbitration award and granted the Union's application to confirm the award. The Eighth District
Court of Appeals affirmed.' See Cleveland v. International Brotherhood of Electrical Workers,
Local 38, supra.
On April 14, 2010, Waiters filed an action against the Union, Lavelle, and the City
seeking an order staying the pending arbitration proceedings and perlliitting Waiters to proceed
for the remainder of the arbitration with her own counsel. On May 12, 2010, the trial court
dismissed Waiters' action in its entirety.
1In addition, on January 29, 2010, Waiters filed a writ of mandamus in the Eighth District Court of Appeals to
compel the City to reinstate Waiters to her position. The appellate court ultimately dismissed the writ as mootbecause the City reinstated Waiters, pursuant to the confirmed arbitration award, while the writ was pending. Thedismissal of the writ is currently before this Court on a separate appeal. See Case No. 2011-0314.
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On June 18, 2010, Waiters was reinstated to her position with the City. On August 27,
2010, arbitration commenced to determine whether Waiters was entitled to back pay for the
period of June 5, 2008 through her reinstatement.
All of Waiters' rights arose under the collective bargaining agreement between the Union
and the City. These rights were fully and effectively asserted by the Union in the arbitration,
leading to Waiters' reinstatement. Waiters' recent decision to create an independent right to
switch midstream to individual representation does not involve a substantial constitutional
question because:
• There is no issue of law not addressed and settled by the decisions of this Court;
• There is no conflict among the courts of appeals regarding any issue; and
• There are no novel issues which would be of interest to parties outside this case.
For these reasons, this Court should decline to exercise jurisdiction to review this case.
Response to Proposition of Law No. 1
"Where the object of a civil action brought by a member of a collective bargaining unit isto seek equitable or declaratory relief in aid of his or her exercise of a right guaranteed bylaw, a common pleas court has jurisdiction over such a claim even if part of the claimalso might constitute an "unfair labor practice" within the meaning of Chapter 4117 ofthe Revised Code."
This is not a novel issue; rather it was specifically addressed by this Court in Franklin
County, supra. Therefore, it is not a case of public or great general interest. Further, while
Waiters represents this case to be a new issue pertaining to a public employee's rights pursuant
to Chapter 4117, this case involves only the issue of whether the Union must relitigate issues in
arbitration which were the subject of an already confirmed arbitration award.
In Franklin County, this Court noted that Chapter 4117 is to be broadly interpreted to
give SERB exclusive jurisdiction over claims which stem from collective bargaining rights.
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Waiters argues that the trial court had jurisdiction to grant her relief because her claims fell
outside Chapter 4117. However, the Eighth District properly determined that Waiters' claims
against the Union directly stemmed from her collective bargaining rights as outlined in Chapter
4117. Each of Waiters' allegations in her verified complaint specifically referred to the
collective bargaining agreement and the arbitration process which was provided for in the
collective bargaining agreement.
It is well established that SERB maintains exclusive jurisdiction over unfair labor
practice charges. City ofEast Cleveland v. East Cleveland Firefighters Local 500, 70 Ohio St.3d
125, 637 N.E. 2d 878 (1994). Waiters relies on the language in East Cleveland, supra, which
states that SERB is not vested with exclusive jurisdiction over every claim which is arguably an
unfair labor practice. Id. at 127-126? However, Waiters' complaint squarely and exclusively
presented an unfair labor practice claim within SERB's exclusive jurisdiction.
As the appellate court noted, Waiters stated that the Union "might not fairly and
thoroughly represent her interests." These allegations did not merely present an arguably unfair
labor practice; rather, they are specifically identified as such by statute. Revised Code
4117.11(B)(6) specifically defines the conduct that Waiters complains about as an unfair labor
practice, stating that a union's failure to fairly represent an employee constitutes an unfair labor
practice. Waiters contends that she did not allege the elements of an unfair labor practice claim,
including that the Union acted arbitrarily or in bad faith. These elements are not necessary to
state a complaint under R.C. 4117.11 (13)(6).
The crux of Waiters' dissatisfaction with the Union's presentation of her claim is that the
Union does not intend to relitigate the arbitrator's July 28, 2008 decision in which he concluded
2 It should be noted that in Waiters' discussion of SERB cases, Waiters cites to District 11; The Health Care & SocialServices Union v. SERB, 2002 SERB 4-10. This decision was reversed by District 1199 v. SERB, Franklin App. No.02AP-391, 2003-Ohio-3436.
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that Waiters failed to mitigate her damages and, thus, was ineligible to receive back pay from the
City. There is no legal basis for the Union to relitigate this issue. The arbitrator.heard testimony
from both parties on the issue of mitigation at the June 5, 2008 arbitration hearing. The
arbitrator subsequently issued a sixteen page decision in which he detailed the specific reasons
that prevented an award of back pay. This decision was subsequently confirmed as part of the
application to confirm the underlying reinstatement award.
Ohio courts have routinely held that an arbitrator's decision with respect to issues of both
fact and law are barred from future attack by res judicata, as the parties had the opportunity to
present their cases to the tribunal of their choosing. See Whitlow v. Ingram (November 7, 1994),
Mahoning App. No. 93CA74. Therefore, there is no basis to relitigate this issue before the
arbitrator.
Accordingly, the real issue in this case is not the application of Chapter 4117 as presented
by Waiters, but rather, whether the Union has an obligation to seek damages on Waiters' behalf
for which there is no legal or contractual authority to do so. Therefore, this case presents a
narrow issue arising from the extensive prior history involving the arbitration proceedings
asserted by the Union to enforce Waiters' collective bargaining rights. Further appeal of this
case would have no application to parties outside of this action.
Response to Proposition of Law No. 2
"At any time before a final, appealable decision is rendered that adjusts all issuespresented by a grievance filed by or for a member of a collective bargaining unit, suchmember may elect under Section 4117.03(A)(5) of the Revised Code to proceed to adjustsuch grievance without the intervention of the collective bargaining representative."
Waiters argues that she should be allowed to elect, at any time prior to the completion of
the arbitration process, to terminate union representation and proceed with her grievance on her
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own. This position is unsupported by any case law and the statute expressly provides that the
election must be made prior to adjudication.
Pursuant to R.C. 4117.03(B)(5), public employees hold a right to present their own
grievances. However, they must exercise this right prior to electing and utilizing union
representation. Waiters claim for reinstatement has already been arbitrated and confirmed,
throughout which Waiters elected and utilized the representation provided by the Union. Waiters
now attempts to rewrite the plain language of the statute to alter her election and proceed
independently pursue the final phase of her back pay claims, which are nearly completed by the
arbitrator. The Eighth District Court of Appeals properly relied on Johnson, supra, in affirming
the dismissal of Waiters' complaint, under these circumstances.
In Johnson, the court acknowledged that an employee has the right to pursue their own
grievance pursuant to R.C. 4117.03. However, such right exists only until the grievant invokes
union representation. Once the grievant does so, the claim becomes the claim of the union and
the grievant lacks standing to pursue the claim independently. The right to independently elect
and pursue the grievance is extinguished.
This same rationale has been the basis for the longstanding precedent which holds that,
when an individual elects union representation to pursue a grievance, the individual employee
has no right to later challenge the ensuing arbitration award in court because the individual
employee is no longer the party in interest. Coleman v. Cleveland School District, 142 Ohio
App. 3d 690, 693, 756 N.E.2d 690 (2001); Stratford v. Greater Cleveland Regional Transit
Authority (Dec. 23, 1993), Cuyahoga App. Nos. 63663. 65530. In Coleman, supra, the court
recognized that reaching a different result would undermine the entire collective bargaining
process. Id. at 693.
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Johnson applied the specific policy considerations that mandated restricting an
individual's right to switch between union and individual arbitration of grievances, stating,
"[t]his conclusion recognized the necessity of subordinating the individual interests of a
complainant to the collective good of a greater body." In Alexander, supra, the United States
Supreme Court recognized that in both the collective bargaining and arbitration processes, the
rights of an individual employee may become subordinate to that of the bargaining unit. Waiters
relinquished her right to individually pursue her claim in June of 2007 when she requested and
received the representation of the Union. As such, Waiters is no longer an individual party in
interest.
This Court has already denied review of the Eighth District decision in Johnson. This
area of law is well settled. There is no conflicting appellate case law. Therefore, this proposition
of law does not merit review by this Court.
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CONCLUSION
The two propositions of law advanced by Waiters have either already been addressed by
this Court, or have been addressed by appellate courts without conflict. Further, because of the
specific facts of this case, a decision in this action is limited to the interest of the parties and the
decision would not affect parties not involved in this action.
Respectfully submitted,
GOLDSTEIN GRAGEL LLC
Joyce Goldstern, Esq. (#002940jgoldstein@ggcounsel.com
Shelley Fleming, Esq. (#0081212)sfleming@ggcounsel. com
1040 The Leader Building526 Superior Avenue E.Cleveland, Ohio 44114(216)771-.6633(216) 771-7559 (fax)
Counsel for Respondent Union
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CERTIFICATE OF SERVICE
I certify that the foregoing was sent via regular U.S. mail this 25th day of March, 2011
upon the following:
S. David Worhatch4920 Darrow RoadStow, Ohio 44224
Steven J. MoodyCity of ClevelandDepartment of Law601 Lakeside Avenue Room 106Cleveland, Ohio 44114
Gregory Lavelle27346 Edgepark Blvd.North Olmsted, Ohio 44070
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